*1 On June 22, 2023, plaintiff MG Premium Ltd (“Plaintiff”) filed a Motion seeking to compel non-party Upwork, Inc. (“Upwork”) to provide further responses to a subpoena (“Motion”). ECF Docket No. (“Dkt.”) 117. The Court finds the Motion appropriate for decision without oral argument. Accordingly, the July 20, 2023 hearing is hereby VACATED. For the reasons set forth below, the Motion is GRANTED IN PART and DENIED IN PART.

On October 28, 2021, Plaintiff filed a Complaint alleging defendants Does 1-20 d/b/a Goodporn.to infringed Plaintiff's copyrights in various “adult-oriented audiovisual content.” See dkt. 1. Plaintiff “operates websites on which it displays its content and also licenses its content for valuable consideration, including for display on various third party adult entertainment websites.” Id. at 5. Plaintiff registered its content with the U.S. Copyright Office. Id. Plaintiff alleges Goodporn.to is a video streaming website targeting United States viewers, inducing them to view illegally displayed copyright protected materials, including copyrights owned by Plaintiff. Id. at 6. Plaintiff alleges Goodporn.to's website allows any user, regardless of age or location, the ability to download Plaintiff's copyrighted adult entertainment content without authorization or license. Id.

On September 9, 2022, Plaintiff filed a First Amended Complaint (“FAC”) against defendants Amrit Kumar (“Kumar”), Lizette Lundberg, Emilie Brunn, and John Does 4-20, d/b/a Goodporn.to (collectively, “Defendants”). Dkt. 30. The FAC sets forth causes of action for (1) copyright infringement, (2) inducement of copyright infringement, (3) vicarious and contributory copyright infringement, and (4) declaratory judgment regarding ownership and non-infringement. Id.

On January 3, 2023, defendant Kumar, proceeding pro se, filed an Answer to the FAC. Dkt. 58. On January 26, 2023, defendant Kumar filed an Amended Answer to the FAC. Dkt. 63.

On February 22, 2023, the Court issued a Jury Trial Scheduling Order setting a non-expert discovery cut-off of July 17, 2023 and a Jury Trial for December 5, 2023. Dkt. 71.

On April 4, 2023, Plaintiff served a subpoena on Upwork seeking information regarding defendant Kumar (“Subpoena”). Dkt. 117-1, Declaration of A. Eric Bjorgum (“Bjorgum Decl.”), ¶¶ 2, 3, Exs. A, B. Upwork appears to be an online platform that allows potential clients to hire freelancers for specific projects.[1] See dkt. 117 at 4. In addition, all communications between a client and freelancer “take place through a chatroom-like message board on the Upwork Platform so that Upwork can ensure it receives a cut of all work done.” Id. at 5. Specifically, the Subpoena seeks: “All account, contact and payment information relating to Krish Kumar, using email address amritkum@proton.me and a physical address in India, including but not limited [to] information regarding [Plaintiff's] transactions with Johnfar Kerlee, Brian Cadwallader, and Casey McCay.”[2] Bjorgum Decl., Ex. A. In addition, the Subpoena seeks “all documents and contact information regarding” five Upwork postings. Id.

*2 On April 13, 2023, Upwork served objections and responses to the Subpoena, including the name associated with defendant Kumar's account, his business address, and user information for five freelancers whom defendant Kumar sent messages to through Upwork's website. Id., ¶ 4, Ex. C. Upwork's response did not include defendant Kumar's email address or billing information. Id. Specifically, Upwork objected on the following grounds: (a) undue burden; (b) vagueness, relevance, overbreadth, and lack of particularity; (c) lack of control; (d) privacy and the Electronic Communications Privacy Act (“ECPA”), 18 U.S.C. § 2702(a); (e) intellectual property and confidential information of Upwork or a third party; and (f) attorney-client privilege and/or work product doctrine. Id.

On June 21, 2023, Upwork's in-house counsel called and spoke with Plaintiff's counsel. Id., ¶ 5. Upwork's in-house counsel stated that documents regarding communications between defendant Kumar and the freelancers could be produced but are “typically produced” only after a motion is filed, and that such motions “are not usually opposed.” Id.

On June 22, 2023, Plaintiff filed the instant Motion. Dkt. 117. Specifically, Plaintiff seeks an order compelling Upwork to produce the following:

See id. at 11. On July 7, 2023, defendant Kumar filed an untimely opposition. Dkt. 126. Upwork has not filed an opposition. The matter thus stands submitted.

Federal Rule of Civil Procedure 26(b) (“Rule 26”) provides that parties may obtain discovery regarding

FED. R. CIV. P. 26(b)(1). Relevant information “need not be admissible in evidence to be discoverable.” Id. A court “must limit the frequency or extent of discovery otherwise allowed” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” FED. R. CIV. P. 26(b)(2)(C).

Federal Rule of Civil Procedure 45 (“Rule 45”) provides the exclusive method of discovery on non-parties. Thompson v. Gonzales, No. 1:15-CV-301-LJO-EPG, 2016 WL 5404436, at *4 (E.D. Cal. Sept. 27, 2016); Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010) (noting non-party can only be deposed by subpoena). The scope of discovery allowed under a Rule 45 subpoena is the same as the scope of discovery allowed under Rule 26. Miller v. Ghirardelli Chocolate Co., No. C 12-4936 LB, 2013 WL 6774072, at *2 (N.D. Cal. Dec. 20, 2013).

In addition, pursuant to Local Rule 7-12, a party's failure to timely oppose a discovery motion may be deemed consent to the granting of the motion. L.R. 7-12.

*3 The Court finds the Subpoena seeks relevant information regarding defendant Kumar's identity and location. See dkt. 117 at 9-10. In addition, because neither Upwork nor defendant Kumar has filed a timely opposition to the Motion, the Court otherwise deems their failure to oppose the Motion as consent to the granting of the Motion. See L.R. 7-12.

To the extent defendant Kumar objects to the Subpoena on the grounds of the privacy of a third party, Krish Kumar, defendant Kumar admits he created and used the third party's account “solely” in connection with pursuing assistance with “the ongoing litigation.” Dkt. 126 at 4. To the extent defendant Kumar objects on the grounds of attorney-client privilege, neither Garland Sanderson, Shaun Curry, nor Brian Cadwallader is a practicing attorney. Moreover, defendant Kumar's use of a third party's account for these communications would waive any attorney-client privilege. See In re Syncor ERISA Litig., 229 F.R.D. 636, 645 (C.D. Cal. 2005) (“Generally, the voluntary disclosure of a privileged attorney-client communication to a third party waives the privilege[.]”). Therefore, defendant Kumar's objections on the grounds of privacy and attorney-client privilege are OVERRULED.

Thus, to the extent the Subpoena seeks “[a]ll user information for the Krish Kumar Upwork account (Username: b5191bcf), including but not limited to all payment information, billing and credit card information, and login/logout IP address(es),” the Motion is GRANTED.

However, to the extent the Subpoena seeks the content of private communications between defendant Kumar and Garland Sanderson, Shaun Curry, and Brian Cadwallader, such disclosure would violate the ECPA. Specifically, the Stored Communications Act (“SCA”), 18 U.S.C. §§ 2701-2712, which comprises part of the Electronic Communications Privacy Act of 1986, generally prohibits “ ‘providers’ of communication services from divulging private communications to certain entities and/or individuals.” Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir. 2008), rev'd on other grounds by City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) (reversing on Fourth Amendment grounds only). Webmail and private messaging services, such as Upwork, are inherently private such that stored messages are not readily accessible to the general public and are therefore subject to the disclosure restrictions set forth in the ECPA and SCA. Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 991 (C.D. Cal. 2010). Importantly, “[t]he SCA does not contain an exception for civil discovery subpoenas.” Mintz v. Mark Bartelstein & Assocs., Inc., 885 F. Supp. 2d 987, 991 (C.D. Cal. 2012) (citing Crispin, 717 F. Supp. 2d at 976) (rejecting argument that the SCA permits the disclosure of the contents of communications pursuant to a civil discovery subpoena).

Here, Plaintiff requests the content of private communications between defendant Kumar and Garland Sanderson, Shaun Curry, and Brian Cadwallader. Despite Upwork's agreement to produce the communications pursuant to a court order, see Bjorgum Decl., Ex. C, there is no exception for disclosure of private communications pursuant to a civil discovery subpoena under the ECPA,[3] see Crispin, 717 F. Supp. 2d at 976. Accordingly, Plaintiff's Motion is DENIED to the extent it seeks to compel Upwork to produce private communications between defendant Kumar and Garland Sanderson, Shaun Curry, and Brian Cadwallader.

*4 For the reasons set forth above, Plaintiff's Motion is GRANTED IN PART and DENIED IN PART.

Accordingly, within seven (7) days of the date of this Order, Upwork shall serve a supplemental response to the Subpoena including “[a]ll user information for the Krish Kumar Upwork account (Username: b5191bcf), including but not limited to all payment information, billing and credit card information, and login/logout IP address(es).”

IT IS SO ORDERED.